Review of arbitral awards for breach of natural justice: an internationalist approach

Model Law ◽

New York Convention ◽

Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

Review of arbitral awards for breach of natural justice: an internationalist approach

10.26686/wgtn.17006266.v1 ◽

2021 ◽

Author(s):

◽

Daniel Brady

Keyword(s):

New York ◽

Dispute Resolution ◽

Alternative Dispute Resolution ◽

Commercial Arbitration ◽

Natural Justice ◽

National Courts ◽

Model Law ◽

New York Convention ◽

Dispute Resolution Mechanism

NATIONAL COURT INTERVENTION IN ARBITRATION AS AN INVESTMENT TREATY CLAIM

International and Comparative Law Quarterly ◽

10.1017/s0020589311000030 ◽

2011 ◽

Vol 60 (2) ◽

pp. 485-498 ◽

Cited By ~ 4

Author(s):

Richard Garnett

Keyword(s):

New York ◽

Dispute Resolution ◽

National Court ◽

Commercial Arbitration ◽

National Courts ◽

Investment Treaty ◽

Model Law ◽

Court Intervention ◽

International commercial arbitration has long been a popular method for resolving cross-border business disputes. The opportunity for parties to choose their adjudicators and the dispute resolution procedure, the scope for privacy and the greater capacity for enforcement of awards compared to court judgments are all important reasons that parties prefer international arbitration over litigation. Reinforcing this trend in favour of international commercial arbitration has been a general consensus among national courts and legislatures that support, rather than interference, should be provided to the arbitral process. Such a philosophy is apparent, for example, in the requirements in the widely adopted New York Convention for States to recognize and enforce both foreign arbitration agreements and awards, and in international instruments such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, which authorize national courts to assist, rather than intervene, in the conduct of arbitrations within their borders. Moreover, international commercial arbitration has proven to be sufficiently flexible as a dispute resolution method to be used both in disputes between private parties, and between private and State entities.

Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

International Arbitration: Law and Practice in Brazil ◽

10.1093/law/9780198840114.003.0002 ◽

2020 ◽

Author(s):

Sester Peter

Keyword(s):

New York ◽

International Arbitration ◽

Commercial Arbitration ◽

Model Law ◽

New York Convention ◽

Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution

Asian Journal of International Law ◽

10.1017/s2044251318000309 ◽

2019 ◽

Vol 9 (2) ◽

pp. 195-205 ◽

Cited By ~ 2

Author(s):

Eunice CHUA

Keyword(s):

New York ◽

Dispute Resolution ◽

Critical Analysis ◽

Trade Law ◽

International Trade Law ◽

Settlement Agreements ◽

Model Law ◽

New York Convention ◽

Brighter Future

AbstractOn 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) and amendments to the Model Law on International Commercial Mediation prepared by Working Group II. These instruments aim to promote the enforceability of international commercial settlement agreements reached through mediation in the same way that the New York Convention facilitates the recognition and enforcement of international arbitration awards. This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.

Part V International Dispute Resolution, 19 International Commercial Arbitration

10.1093/law/9780198735441.003.0020 ◽

2015 ◽

Cited By ~ 1

Keyword(s):

Dispute Resolution ◽

Commercial Arbitration ◽

Conflict Of Laws ◽

National Courts ◽

International Dispute ◽

Model Law ◽

The Relationship ◽

Distinguishing Features

This chapter examines the nature of international commercial arbitration and its distinguishing features; the harmonisation of the law of international commercial arbitration; international arbitration and the conflict of laws; the review of arbitral awards; and the recognition and enforcement of arbitral awards. Consideration is given to the contribution made by the UNCITRAL Model law on International Commercial Arbitration and to the rules of various arbitral institutions (such as the ICC) to the harmonisation of arbitral law and practice. Also examined is the relationship between arbitration and national courts and national law, particularly in the context of the debate over delocalisation.

Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards

European Journal of Comparative Law and Governance ◽

10.1163/22134514-00204002 ◽

2015 ◽

Vol 2 (4) ◽

pp. 316-350

Author(s):

Wasiq Abass Dar

Keyword(s):

Public Policy ◽

New York ◽

Special Focus ◽

Commercial Arbitration ◽

National Courts ◽

Or Practice ◽

Wide Definition ◽

Model Law ◽

New York Convention ◽

Definition Of

The paper, as the title suggests, aims at understanding and exploring the doctrine of public policy as a ground for refusing enforcement of foreign arbitral awards. Public Policy is one such ground provided in the New York Convention as well as in the uncitral Model Law, which is most often invoked in the national courts to challenge or refuse the enforcement of foreign arbitral awards. What makes it more complicated is the lack of common world-wide definition of public policy or practice on its application, as the same varies from State to State. The traces of ambiguity, subjectivity (at the hands of the courts in terms of interpretation of the concept), and unpredictability associated with the concept of public policy have at times significantly thwarted the effectiveness and efficiency of international commercial arbitration. This paper attempts to understand and explore the enigma of public policy as an exception to the enforcement of foreign arbitral awards. Apart from revisiting various scholarly works on this issue, interpretation of this concept by various judicial institutions across the globe (with special focus on India, Pakistan, Bangladesh and Sri Lanka) has been attempted, followed by a comparative analysis, to analyse its application on the ground. This paper argues and suggests that a more desirable method of interpreting public policy, i.e. narrow interpretation, is the need of the hour, keeping in consideration the growing demands of international trade and commerce.

International Commercial Arbitration in Malaysia

Pertanika Journal of Social Sciences and Humanities ◽

10.47836/pjssh.29.s2.10 ◽

2021 ◽

Vol 29 (S2) ◽

Author(s):

Iyllyana Che Rosli

Keyword(s):

New York ◽

Best Practice ◽

International Treaties ◽

Commercial Arbitration ◽

Cross Border ◽

Before And After ◽

Model Law ◽

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Part III International Arbitration Agreements: Issues and Perspectives, 6 Some Reflections on the Making of International Arbitration Agreements for the Resolution of Commercial Disputes

10.1093/law/9780198783206.003.0007 ◽

2016 ◽

Author(s):

Saville Lord

Keyword(s):

New York ◽

Dispute Resolution ◽

International Arbitration ◽

Commercial Arbitration ◽

International Dispute ◽

Model Law ◽

New York Convention ◽

Legal Procedures ◽

Commercial Disputes

This chapter presents some thoughts on international arbitration. It begins with brief descriptions of the New York Convention and the UNCITRAL Model Law, which serve as the foundations of international dispute resolution. It then discusses arbitration agreements, the role of institutions, the role of law, and the disadvantages of arbitration. It argues that international commercial arbitration has become much more like that of the London Commercial Court; more often than not lawyers are called in from the outset. Pleadings, discovery, and the like are commonplace. The arbitral process has also become more expensive, notwithstanding substantial efforts by arbitral institutions and others to limit costs. It further suggests that where the tribunal considers that the dispute can be dealt with fairly and more cheaply without the full panoply of such legal procedures as the parties’ lawyers propose, that they make certain that the parties themselves, not just their lawyers, are made aware of the tribunal’s view.

THE APPEAL OF INTERNATIONAL COMMERCIAL ARBITRATION AWARDS AS A FORM OF JUDICAL CONTROL BY NATIONAL COURTS

Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies ◽

10.17721/1728-2195/2019/3.110-2 ◽

2019 ◽

pp. 8-16

Author(s):

S. Kravtsov

Keyword(s):

New York ◽

Dispute Settlement ◽

Legal Protection ◽

European Convention ◽

Dispute Settlement Mechanism ◽

Commercial Arbitration ◽

National Courts ◽

The appeal of the international commercial arbitration awards is a major issue in the dispute settlement mechanism for arbitration governed by multilateral conventions, bilateral treaties and national laws, as well as by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Notwithstanding the importance of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it restricts to a certain extent the scope of legal protection of arbitral awards, as it leaves national courts to challenge them by the way of possible annulment, and national courts when considering petitions for annulment decisions are vested in the power to revoke such decisions. In this respect, the resolution of these issues may raise the issue of the correlation between the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and domestic legislation of the countries in which the relevant decision may be challenged. The specific of the international commercial arbitration decision is that it cannot be appealed to any higher court. However, the absence of any form of control over the arbitral award could lead to the enforcement of such decisions, which, if rendered within the judicial system, would be overturned or modified by a higher court. Therefore, there is an institution for challenging arbitral awards in national courts. Due to the fact that the arbitration award is a form of control by national courts, the regulation of this institution is defined in the legislation of each individual country, and at the international legal level only certain aspects are regulated. These are the European Convention of 1961 and the New York Convention of 1958.

Dallah: the death knell for deference?

10.26686/wgtn.17142995.v1 ◽

2021 ◽

Author(s):

◽

Anastasia Lee Fraser

Keyword(s):

New York ◽

United Kingdom ◽

Supreme Court ◽

De Novo ◽

Commercial Arbitration ◽

English Court ◽

Arbitral Award ◽

The United Kingdom ◽

<p>This paper examines the decision of the United Kingdom Supreme Court in Dallah Real Estate and Tourism Holding Company v The Minister of Religious Affairs, Government of Pakistan, a rare case where an English court refused enforcement of an international arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Although in Dallah the United Kingdom Supreme Court acknowledged the trend to limit reconsideration of the findings of arbitral tribunals in fact and in law, the Court considered it was bound to decide the question of validity de novo. Contrary to the tribunal, the Court held the arbitration agreement was not valid under the law to which it was subject and refused enforcement of the arbitral award. This paper analyses how the English Supreme Court decided the legal issues before it. It concludes the English court could have reached the same decision on a more convincing basis. Even where the issue is initial consent, holding the court at the place of enforcement is always bound to decide a matter de novo neither serves the objectives of international commercial arbitration nor is necessary to promote the fundamental integrity of arbitral proceedings.</p>